The Special Assignment

19th October1997

Graft stinks, graft-busting stinks more

Whither fight against corruption, three years after Permanent Commission is set up?

By Kishali Pinto Jayawardana

Nelum Gamage: an impressive number of years in service; in countroversy now
Now is the time, when tempers are a little less frazzled and the questioning of Nelum Gamage's husband, Lal Gamage, by the Permanent Commission to investigate Bribery and Corruption has been effectively put under wraps to all but a selected media, to tell a little story. (For those not in the know, Ms Gamage is the Director General of the Permanent Commission, a woman who was the former Bribery Commissioner and, as we have been informed ad nauseam, was the only person mentioned by name in the PA manifesto which promised her reinstatement as Bribery Chief). But, I digress. The story ought to be allowed to develop first. And like all good stories, it begins in the most appropriate way.

A long long time ago, when the republic was still young and independence barely behind us, Lord Acton's warning that power corrupts and absolute power corrupts absolutely, was rarely if ever remembered. It was a different age of accountability and gentleness, where a politician was not a dirty word and public figures considered their personal code of conduct to be more important than all the laws passed by the legislative assembly of the day.

Come the passage of time, and things changed. Ethical standards went by the board and there began this frantic search to effectively control those who violated the law for filthy lucre.

Under the United Front Government of the '70s, exchange control racketeers masquerading under colourful nom de plumes like Lord Mowjood were some of the more obvious blackguards.

But wherever the agents of law and order went, like Mary's little lamb, a particularly persistent problem also dogged their footsteps. The big ones who were the political favourites of the day were escaping and only the lackeys or those out of favour were getting caught. Over-enthusiastic investigators went out of their way to tackle the problem leading to a historic film being made called 'Sagarayak Meda'. And a Criminal Justice Commission appointed to look into exchange control violations was accused of witch-hunting by human rights groups as respected as the Civil Rights Movement.

As the economy bloomed in 1977, the situation became more precarious. The rot spread from those in the seats of power to the humble peon in government offices.

Suddenly, the buzzword was action, and the enemies were bribery and corruption.

But of course, it was not that simple, the little lamb remained, only it was not little and neither was it much lamb-like. Its cry remained 'Catch those who are guilty not because they have violated the law but because they should be taught a lesson for holding the wrong political opinions in the wrong place and at the wrong time.'

protesting againt corruption
In 1994, a break was made from the past. All the signs were optimistic.

For once the PA and the UNP reached unanimity about what should be done. With much flair and flamboyance, an ambitious package of anti-graft laws — that set up a Permanent Commission to handle complaints, and created a new offence of corruption — was passed unanimously.

The new offence was expected to catch up any public servant who acts or does not act in his official duties, makes official decisions or uses official information with a view to benefiting himself or herself. Its scope was very much wider than the conventional anti-bribery clauses.

The Commission was vested with wide powers to impound passports and to call for details of the assets, properties and bank accounts of persons under investigation. Forfeiture of property could also occur, in addition to imposition of a jail term and a fine, as penalties

Government and Opposition MPs agreed the new laws should establish that any investigation should involve three principles — a trial before a duly constituted court of law, proof of guilt beyond all reasonable doubt and the right of appeal to a higher court.

Two and a half years following the passing of the new laws, it appears that the intention of the legislature (whatever that hilarious phrase may mean) has badly backfired. With all respect to the Commission, analysis of their work record from 1994 is disappointing to say the least.

The Sunday Times looked at the relevant court records and found out that only some 400 cases of bribery, 14 cases of assets investigation and just one case of corruption have been filed during the past three years.

The corruption case which was reported in The Sunday Times recently involves a school principal who had allegedly taken some cups and saucers and a table cloth from a pupil for signing her educational certificates.

The question arises, was it for this that Parliament sat through a marathon session to pass new laws hailed as ushering in an era of greater accountability? All this too in the name of a 'new' offence of corruption that was supposed to catch persons guilty of something that went beyond mere bribery allegations. (it is not in mere jest that a story is currently doing the rounds about the bank director who on reading the 'Cups and Saucers' copy, had suffered a momentary attack of conscience about the seasonal hampers sent to him periodically in the course of his business.)

Meanwhile, the working of the Commission itself has not been entirely trouble free. The law specified that the three Commissioners be appointed by the Constitutional Council (comprising representatives of both the Opposition and the Government) for a fixed term, removable only upon a motion in Parliament. As the Council had not yet come into being, former Supreme Court judge T.A.D.S. Wijesundera, former Appeal Court judge Siva Selliah and retired Auditor General P.M.W. Wijayasuriya were appointed to the body by the President.

Following appointment of the Commissioners, inquiries were held into the activities of several frontrankers of the previous regime, including a former UNP frontranking Minister. A report was compiled though its fate remains uncertain. Former Army Commander Hamilton Wanasinghe was one person who was ultimately indicted on the basis of Commission investigations. The case which is on an assets charge is proceeding.

Not much time passed before a major controversy arose over a Commission report when the Commission found the General Manager of the Bank of Ceylon Rohini Nanayakkara guilty of corruption with regard to a computer purchase deal. The publicising of the report led to senior lawyers calling for the Commission itself to be charged for violating secrecy laws.

Legal analysts pointed out obvious deficiencies in the law. The law specified that a person can be charged with corruption only in respect of acts occurring after 1994 on the basis of the time honoured principle that a new offence can only operate for the future. But, even though no legal action can be taken, the Commission is given powers of inquiry into alleged acts of corruption that occurred prior to this. These can then be gone into by the Commission which is empowered to send the report to the President who shall forward it to Parliament. By publicising these reports (which are in any case, only findings of a prima facie case against a person and different to a decision of a court of law) the reputations of persons are in any case tarnished, even though indictment is not filed against them, as what happened in the Nanayakkara case.

The third Commissioner who was a respected public servant resigned shortly afterwards, and retired IGP Rudra Rajasingham was appointed in his place. Meanwhile, the vacancy that arose when Commissioner Siva Selliah passed away last December has not been filled as yet, and the Commission continues to operate with only two Commissioners.

That the Commission should — like Caesar's wife — not only be above suspicion but should be seen to be so is important for one compelling reason. The law gives it and only it, the supreme power to decide when to institute an inquiry, and when to recommend further action.

The Director General has been virtually stripped of all initiative, and responsibility for an impressive or unimpressive corruption fighting record has passed from a single individual to the Commission itself. A fact that has been wilfully or unintentionally ignored in the latest controversy to hit the headlines concerning accusations against the Director General.

This brings us to the ongoing investigations against Director General Nelum Gamage's husband Lal Gamage who has been accused of improper conduct and abuse of his wife's position.

The accusations followed the resignation of another senior official of the Commission, Vijaya Hettiarachchi, barely a week earlier.

Both Ms Gamage and Mr. Hettiarachchi record an impressive number of years in service, and the resultant controversy has sent Commission staff into a stage of siege, with dark talk of coup d'état being staged in its corridors.

But perhaps the most disquieting development of the entire drama is the manner in which detailed proceedings of what is happening within the Commission are being reproduced in some sections of the press, without any disciplinary inquiry being conducted to ascertain who is responsible.

Members of the Commission which presumably includes all its officers including legal officers assigned to the Commission by the Attorney General's Department, are bound by a secrecy clause which prohibits them from talking about official matters. This has not appeared to have deterred some bold spirits from disclosing information that has stirred up a hornet's nest, the buzzing of which will undoubtedly remain even if the investigations ultimately result in nothing illegal being found.

All this is of course, a far cry from the corruption fighting body, acting within strict secrecy guarantees that Parliament envisaged in 1994. It was not for nothing that the legislature insisted on secrecy being observed in all investigations until definite action was taken in a court of law.

Perhaps, former Premier S. W. R. D. Bandaranaike's words in 1958 summed up the dangers best. Mr. Bandaranaike, debating the Second Reading of the Bribery Amendment Act said:

"Let us of course also see the other side of the picture which should not be forgotten, and which I think should be mentioned, namely that those who are in public positions are peculiarly vulnerable to all sorts of charges brought forward without reason, without justification. It may be that A tells B something; B elaborates on it and repeats it to C; C tells it to X; and at the end the whole thing becomes terribly distorted, with the result that someone is tarred with having committed some despicable act of bribery and corruption."

It was for this reason that anonymous petitions against persons are treated with great caution and the law prescribes a stiff punishment for those making false allegations. Anti-corruption bodies are meant to balance an extremely thin line between effective prosecution and destroying people's characters through baseless investigations.

Back in 1994, it was thought that a Permanent Commission would deal effectively with this problem. We still have to reserve judgement.

Meanwhile, problems connected with Commission sittings have been pointed out. Persons who have appeared before Commission sittings allege that they cannot be represented by lawyers, and that their rights to a fair hearing are affected as a result.

In contrast to this, there is plenty of legal expertise 'on the other side' as State Counsel to assist the Commission while the Commissioners themselves are retired judges.

Other functional problems remain. The Commission does not have an independent investigative unit unlike anti-corruption units in Singapore and Hong Kong. A police Division is attached to the Commission with officers under the IGP, and liable to transfer or other disciplinary action. Commission officers still cannot investigate into ill-gotten gains salted away in foreign banks with the result that many of the sharks find it all too easy to escape the net.

What its most fervent admirers will have to concede however is that the Permanent Commission on Bribery and Corruption has a long way to go before it can even hope to live up to those expectations that were given much voice in the heady aftermath of an election victory in 1994. And, the sharks continue to laugh. These kind of stories are, not surprisingly, very much to their liking.

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